Mandatory Reporting Act and Jurisdiction Challenges

Date: March 30, 2021
Classification: UNCLASSIFIED
Fully releasable (ATIP)? TBC
Branch / Agency:  DOJ and RCMP

Issue:

Law enforcement agencies face jurisdiction challenges when investigating crimes that are facilitated across the Internet and enforcing the Mandatory Reporting Act.

Proposed Response:

Background:

Legislative Framework

Canada’s criminal law provides comprehensive legal protections against all forms of sexual abuse and exploitation of children, and contains prohibitions against possessing, accessing, making and distributing all forms of child pornography, including where committed via the Internet, social media and/or other technology. Canada’s definition of child pornography (commonly known as child sexual abuse material) includes not only actual depictions of child sexual abuse, but also fictitious depictions, as well as written and audio forms of child pornography that may fuel the market for these materials or normalize this behaviour. It also prohibits the use of the Internet to communicate with a child for the purposes of facilitating the commission of a sexual offence.

In 2011, Canada introduced An Act respecting the mandatory reporting of Internet child pornography by persons who provide an Internet service. The Act imposes reporting duties on Internet service providers when they are advised of an Internet address where child pornography may be available to the public or if they have reasonable grounds to believe that their Internet service is being or has been used to commit a child pornography offence.  The Act recognizes that a person can be in compliance with their reporting obligations if they report under the laws of a provincial or foreign jurisdiction. The Act has been interpreted by many to apply to a narrow definition of Internet Service Providers (e.g. Rogers, Bell), excluding Application Service Providers (internet platforms, social media companies), although this was not the intention when drafted. Online child sexual exploitation material is generally hosted by Application Service Providers.

Since 2015, in order to better protect victims and respond to emerging trends, the Criminal Code also prohibits the non-consensual distribution of intimate images (section 162.1) and empowers the courts to order the removal of intimate images from the Internet (section 164.1).  These changes were made to the law by former Bill C-13, the Protecting Canadians from Online Crime Act, which was referred to in the letter. Courts are also authorized to order the disposal or deletion of child pornography, voyeuristic recordings, and advertisements of sexual services from print materials or made available through computer systems in Canada, which includes the Internet (sections 164 and 164.1).

RCMP Challenges

The RCMP National Child Exploitation Crime Centre (NCECC) is Canada’s central point of contact for investigations related to online sexual exploitation of children. As a critical part of its mandate, the NCECC regularly collaborates with Canadian and international law enforcement partners to advance investigations.Domestic and international law enforcement in large part rely on the NCECC’s investigative expertise and support, as online child sexual exploitation is often multijurisdictional or multinational, as victims, evidence, and company infrastructure spans the globe.

Services that flow through the Internet transcend international borders, however, the enforcement authority of those who police crimes that use these services, such as the RCMP, is limited to their domestic jurisdiction within traditional borders.  An important component of the international law enforcement response to online child sexual exploitation is the work of the Virtual Global Taskforce (VGT), which the RCMP currently chairs. The VGT is an international police alliance dedicated to the protection of children from online child sexual exploitation and other sexual offenses.
Governments and law enforcement agencies around the world face serious challenges accessing digital evidence, which is necessary in order to investigate these crimes, prosecute offenders and protect victims and survivors. 

Canada continues to work tirelessly with all of our policing partners, domestic and international, to facilitate cooperation in the investigation and prosecution of these crimes.

The RCMP will continue to investigate online child sexual exploitation crimes to the fullest extent possible, collaborate with domestic and international partners, identify and remove victims from harm, conduct operational research, and examine new technical solutions to enhance this work.

Mandatory Reporting Act

The RCMP engages service providers to explain relevant Canadian legislation and obligations, and enforces the law to the greatest extent possible. However, there can be jurisdictional challenges in applying domestic criminal laws to Internet services, which are global in nature and not bound by traditional borders.

Since the Mandatory Reporting Act came into force in 2011, the way that the Internet is used and how crimes are committed online has evolved. The RCMP has been actively working with its federal partners to identify ways in which the Act could be updated to address gaps and increase its effectiveness in protecting children from victimization. This includes examining: the scope of the Act and what entities are subject to the obligations under the Act; powers for better monitoring compliance with the Act; the information that must be reported to police when companies have grounds to believe that their Internet service is being used to commit a child pornography offence; and how to address issues around loss of evidence due to short retention periods of service providers. These issues are being examined with a view of having timely and efficient investigations into child pornography offences, and ensuring police have robust powers to investigate companies for non-compliance. The RCMP strongly supports addressing gaps and challenges within the Mandatory Reporting Act to better equip the RCMP with the tools required to protect children from harm.

In 2018, Pornhub had a call with representative of the RCMP’s National Child Exploitation Crime Centre (NCECC), which is mandated to address online child sexual exploitation. There were discussions around the Mandatory Reporting Act and the obligations contained therein. At the time, Pornhub indicated the Mandatory Reporting Act did not apply to them as they are not a Canadian company. In 2020, the National Center for Missing and Exploited Children (NCMEC) in the United States met with Mindgeek with respect to Pornhub. NCMEC advised the RCMP that Mindgeek would make referrals to their organization on a voluntary basis. The RCMP began receiving reports from Pornhub through NCMEC in June 2020. The NCECC spoke with Mindgeek again in January 2021, where it was determined that Pornhub would also provide the RCMP a summary of what they report to NCMEC to satisfy section 3 of the Mandatory Reporting Act, which requires reporting to law enforcement. Since the RCMP would be receiving Pornhub reports through NCMEC, the RCMP agreed that duplicate reporting to the NCECC and NCMEC was not sustainable or a good use of resources.

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